Those granted Deferred Action for Childhood Arrivals (DACA) from June 15, 2012 through August 15, 2012 are reminded to apply for renewal with the USCIS.

If their previous deferred action expires before their DACA renewal is approved, they will accrue unlawful presence and will not be authorized to work during that period. USCIS therefore has urged early filing of renewal applications or at least 120 days before their two-year deferred action and work permits under DACA expire.

It must be noted that the recent DACA renewal guidance only covers individuals who were granted DACA by ICE before August 15, 2012. The USCIS has not yet released guidelines for individuals who received DACA after August 15, 2012.

Applicants for DACA renewal must satisfy eligibility requirements as if it was their initial application. USCIS Guidance requires applicants to submit Form I-821D, Consideration for DACA, accompanied by Form I-765 to renew work permit and Form I-765WS.

On the Form I-765WS, the applicants will establish economic need for the employment authorization, by indicating their personal current annual income, annual expenses and value of assets. Supporting documentation to prove economic necessity is not required.

The application must be accompanied with the payment of $380 for Form I-765 and $85 for biometrics fee, totaling $465 in filing fees, which can be in a single check or in two separate checks.

To be considered for renewal, an applicant must meet the following: be under the age of 31 as of June 15, 2012; came to the U.S. before his 16th birthday; continuously resided in the U.S. since June 15, 2007 up to the present; did not depart the U.S. on or after August 15, 2012 without advance parole; physically present in the U.S. on June 15, 2012 and at the time of making the request; and entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012.

Also, the applicant seeking renewal must satisfy one of the following education requirements: has graduated or obtained a certificate of completion from high school, or obtained a GED certificate, or was honorably discharged from the U.S. Coast Guard or Armed Forces, or was in school at the time he requested DACA from ICE and has successfully completed an education or training program and obtained employment or is currently enrolled in school.

Applicants for DACA renewal must not have been convicted of felony, significant misdemeanor, or three or more misdemeanors during the two-year period they were granted deferred action and must not otherwise pose a threat to national security or public safety.

The USCIS Guideline clarifies that it will review the requests for renewal on an “individual, case-by-case basis” to “determine whether the exercise of prosecutorial discretion is appropriate.” If the agency determines that deferred action is not warranted, it may not grant the request even if the applicant meets the threshold criteria for consideration.

A motion to reopen or reconsider or an appeal is not available if the USCIS denies the request; however, the USCIS may issue a Request for Evidence (RFE) for additional evidence showing the applicant’s eligibility.

If approved, deferred action and work permit under DACA will be valid for another two years.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call 212-695-5281)